Archive for the ‘subpoenas’ Category

In an amicus brief, the Reporters Committee for Freedom of the Press is urging the courts in Virginia to apply a heightened standard of review before ordering that anonymous online commenters be outed.

(I won’t tell you the facts of the case, but the caption is Hadeed Carpet Cleaning, Inc., v. John Doe #1, et al., and the respondent on the other side of the discovery order is Yelp, Inc. So I’m betting you can figure it out.)

[T]he First Amendment restricts compulsory identification of anonymous speakers on the Internet. When faced with questions of compelled disclosure of anonymous online speakers, this Court must adopt a meaningful standard that requires a heightened showing of evidence of a valid claim and notice to the affected parties. This standard is essential to protect the interests in anonymous speech, which often serve the public good and contribute to a better understanding of public issues and controversies.

Joining the amicus brief were Washington Post, American Society of Newspaper Editors, and the Gannett Company, which owns USA Today.

Duke University has withdrawn its subpoenas directed at blogger and academic KC Johnson, who has written extensively about the Duke lacrosse case from 2006. The move comes ahead of an anticipated ruling by federal district court in Maine on whether to quash the subpoenas.

Duke University has issued a subpoena seeking a blogger’s notes and correspondence, and the Reporters Committee for the Freedom of the Press has filed an amicus brief urging the court to quash the subpoena.

The underlying case is McFadyen & Carrington v. Duke University, which stems from the Duke lacrosse scandal. The subpoena is aimed at blogger, author, and history professor KC Johnson (formally, Robert David Johnson).

From what I see, Twitter is doing a strong job of standing up for user privacy in the case of the criminal prosecution of Malcolm Harris. In that case (CMLP summary) New York prosecutors are trying to get Twitter to hand over information about Harris, who has been charged with disorderly conduct relating to an October 2011 Occupy Wall Street protest on the Brooklyn Bridge.

Yesterday, Twitter handed over the requested information pursuant to a court order.

There has been a lot of traffic suggesting that Twitter gave up rather than continue to fight (e.g., Betabeat: “Twitter Caves”). But that’s unfair. Twitter is trying to get review from a higher court. And the records they turned over are sealed until September 21, when another hearing is set.

Twitter has done the right thing. It is right for Twitter to resist. But it is also right for Twitter to comply with the court order to turn over the information. (Even though the court was plainly wrong to issue the order.)

What Twitter should do – and what it is doing in this case – is use all available legal process to protect user privacy. Twitter should not, however, violate the law in order to thwart the courts and prosecutors.

Many reporting on the case have said something to the effect that Twitter decided to turn over the information rather than face expensive fine for being held in contempt of court. (EFF said something similar in an otherwise great post on the case.) Saying that makes it sound like Twitter cheaped out. But, as I see, and as I would see it if I were advising Twitter, the problem is not the expense, it’s that refusing to comply with the court order means Twitter itself is violating the law.

It’s true that reporters will often take a contempt citation and go to jail to protect an anonymous source. When they do, it’s civil disobedience, and it’s often heroic. I hate to say it, but the stake are simply lower here. Anonymous-source-based journalism outed Watergate. It’s cultural and societal importance looms very large. Journalists have tried to get shield laws passed to prevent contempt being used to compel the identification of anonymous sources. And shield laws have been passed in many states. For the remaining gaps, brave reporters have often acted in defiance of the courts and the law to uphold free-press values.

The battle Twitter is fighting is different. It’s more of a general internet privacy issue, and while important, it’s a different ball of wax. It’s worth fighting for the cause in the courts, in the legislatures, and on the international level. But I’m not convinced there are fundamental rights here which necessitate disobeying court process.

A subpoena is a legal document that commands you to hand over documents or appear someplace at a certain time to answer questions under oath. Subpoenas are necessary to get the business of our civil justice system done, but they can make the IRS seem like an old friend by comparison.

And that makes for what I think is the biggest problem with the Reader Privacy Act, a new California law intended to increase people’s privacy with regard to what books they choose to read. (More problems here and here.) To accomplish this, the new law puts certain requirements on any online “book service” provider (which, oddly, might includea blog) that receives a subpoena seeking information on any of the provider’s readers. The requirements are that before complying with the the subpoena, the “book service” provider must give notice to any reader whose information is sought and/or the provider must make a number of determinations about the legal appropriateness of the subpoena.

So, for instance, a provider covered under the law is not allowed to comply with a qualifying subpoena unless the provider first gives 35-day advance notice to the reader about the reader’s ability to seek a motion to quash the subpoena. §1798.90(c)(2)(B)(iv).

Just think about that for a minute: The subpoena is an order issued by a court commanding a person to do something. But under this new law, a person is prohibited by law from obeying that court order unless and until the person fulfills certain requirements.

You would think, if you got a court order, you’d be safe in obeying it. But not so!

And that’s crazy. That’s more than just crazy. That’s the Crazy Suite at the Hotel Crazy.

But wait, it actually gets crazier.

Under §1798.90(c)(1), it is illegal for a covered “book service” provider to obey a subpoena commanding the disclosure of information to a law enforcement agency unless the law enforcement agency has met two conditions and the court itself has met three conditions. For instance, you can’t obey a subpoena under the law unless the court first “finds that the law enforcement entity seeking disclosure has a compelling interest in obtaining the personal information sought.” §1798.90(c)(1)(B).

Yes, that means it’s illegal for you to do something the court is commanding you to do unless the court made a certain finding before hand. To be quite plain, it is unlawful for you to comply with a court order demanding that you cooperate with law enforcement.

The only precedent I can think for whackitude like this is the children’s game of Simon Says. In Simon Says, the leader barks commands preceded by the words “Simon says.” If you obey a command that is not preceded by the words “Simon says,” you’re out.

It’s silly, but that’s what makes it fun. For children. Who are playing.

But it’s not fun for the California legislature to do this. It’s not fun at all.

If the California legislature thinks the courts and the police are out of control, then – I hate to have to point out the obvious here – they can put restrictions on the courts and the police. That only makes sense.

Instead, the California legislature has made it illegal for people to cooperate with the police and the courts when the police and courts are, in the legislature’s judgment, going too far.

But wait. It gets CRAZIER still. Look at this provision:

A provider shall disclose personal information of a user to a law enforcement entity only pursuant to a court order issued by a duly authorized court with jurisdiction over an offense that is under investigation and only if …
[p]rior to issuance of the court order, the law enforcement entity seeking disclosure provides, in a timely manner, the provider with reasonable notice of the proceeding to allow the provider the opportunity to appear and contest issuance of the order.

§1798.90(c)(1)(D).

That’s right: It’s illegal for you to obey the subpoena if the police didn’t inform you of your right to contest the subpoena.

That’s like making it illegal for a suspect to answer questions while in police custody if the police failed to inform the suspect of the suspect’s right to remain silent.

In this post, I’m going to take issue with what Levy says, and I’m going to offer some things to bolster Goldman’s critique.

Let me note at the outset that Levy is a heavy-hitting litigator who fights the good fight. He’s on the right side of battle after battle, doing pro bono impact litigation that makes our world a better place. So, I’m certainly not at odds with Levy in the greater scheme of things. But I do think that Goldman points out a serious flaw in California’s new privacy law, one that is bad for bloggers, and one that’s worth dwelling on for a bit.

Also, I’m a California litigator. I’ve spent a lot of time puzzling over California statutes. I’ve come to believe that California statutory law needs some watchdogging. So I offer my comments in that vein.

… Professor Goldman ignores the limiting impact of the word “entity.” An individual is not an entity; rather, an entity is defined by Black’s Law Dictionary as an organization whose identity is separate from its members.

First, while a dictionary can be helpful resource for readers stumbling across unfamiliar legal words, it is not, at least in my view, a particularly persuasive foundation for interpreting a statute. Regardless, however, I don’t think the definition that Levy cites excludes natural persons. If you look at the whole definition, it clearly says that an entity can have a separate legal existence from its members, but the definition doesn’t say that a natural person can’t be an entity.

At any rate, dictionary definitions are really beside the point. The fact is, there’s a plentitude of legal precedents considering “entity” to embrace an individual person. For instance, many statutory schemes explicitly define “entity” to embrace an individuals. One prominent example is the U.S. Bankruptcy Code. See, 11 U.S.C. § 101(14).

Moreover, courts have plainly used the word “entity” to refer to an individual person. In discussing what the word “individual” meant, for instance, New York’s high court held, “An individual is one entity, one distinct being, a single one, and when spoken of the human kind means one man or one woman.” People v. Doty, 35 Sickels 225, 1880 WL 12385 (N.Y. 1880).

In defining “sole proprietorship,” a D.C. court used the word “entity,” saying, “A sole proprietorship is an entity that is so identified with its owner that the business either must undergo a fundamental change or cease to exist upon the owner’s death or retirement.” Hunter Innovations Co. v. Travelers Indem. Co. of Connecticut, 605 F. Supp. 2d 170, 173 (D.D.C. 2009).

Levy makes other arguments, however:

The statute itself confirms this construction, in that it limits any disclosure (voluntary or compelled) to a “government entity,” but limits compelled disclosure to “any person, private entity, or government entity.”

This is a helpful argument, one which I find somewhat persuasive. But it’s not the end of the matter. The fact is, “person” under the law frequently includes such entities as corporations. Often – I would even say most of the time – when the law means an individual human being, and not things such as corporations, the law uses the term “natural person.” In fact, a neighboring section of the California Civil Code, Section 1798.3, says that “‘individual’ means a natural person” and “‘person’ means any natural person, corporation,partnership, limited liability company, firm, or association.” If “person” includes “corporation,” that arguably makes the term “private entity” redundant of “person,” except that ”person” might embrace a public corporation (i.e., a corporation with publicly traded shares), whereas, perhaps, “private entity” would not.

All of this going around in circles, of course, just illustrates that this statute is poorly drafted. It’s another home run by the folks in the California Legislature. I wish someone would come up with a ballot initiative to force the California Legislature to employ a huge army of well-paid staff to draft and analyze legislative language. It would be worth every penny. The alternative is half-baked text or the made-to-order work product of lobbyists. (Although, with the ACLU, EFF, and (ahem) Google lobbying for this, you’d think made-to-order language would have been pretty good.)

Okay, let’s go on to Levy’s next argument:

A similar understanding that an individual is not an entity is shown by the fact that “government entity” is defined to include any “state or local agency” or “any individual acting or purporting to act for or on behalf of a state or local agency.” If “government entity” included individuals, this last clause would not be needed[.]

Hmmm. I get exactly the opposite out of that. By including individuals within the term “government entity,” the legislature, it seems to me, shows that it understands individual persons to qualify as a kind of entity.

Levy’s bottom line:

So the individual blogger is plainly off the hook as a “commercial entity.” A corporation that blogs, yes. A partnership blogs, yes. But not an individual.

I very much disagree with the phrase “plainly off the hook.” I’d go with “arguably.” Levy makes a fine argument. But, in my mind, that’s all it is: an argument. Take it from me – a member of the California bar who has spent approximately eleventeen bazillion billable hours researching and briefing issues of California statutory interpretation: This is not an easily-disposed-of issue.

But while we are on the subject of phraseology, I note that Goldman’s word for describing the new statute is “misarchitected” – a word which, technically speaking, doesn’t seem to exist. That’s not a knock on Goldman. To the contrary, as I’ve pointed out before, I think it’s part of the job of a law professor to use big words and to even make up new words. Every once in a while, I slip a big, nonexistent word by law-review editors. And count me on board with this one. I’m already thinking about how I can stick misarchitected into one of my working manuscripts.

In the meantime, when it comes to the Reader Privacy Act, I simply do not find Levy’s allayances persuasive. Thus, I must offer the California Legislature my regretulations on a job not-super-well-done.

Later this week, I’ll explain my biggest problem with the Reader Privacy Act.

I’ve been thinking back over the last year, Blog Law Blog’s first year, and trying to figure out what broad lessons there are to be learned about blog law. The most striking thing to me, I think, is the tremendous number of altercations we’ve seen between local officials and bloggers.

Where do local officials get off thinking they should be able to silence online critics? What’s a bit puzzling is that the behavior exhibited by local officials toward the online press is something you would never see either (1) by federal or higher-level state politicians and officials, or (2) by local officials against the traditional media. Well, you might see it very rarely. But not with the frequency and abandon with which town politicos go after laptop-wielding gadflies.

So what accounts for the difference?

I think a big part of it is that local officials aren’t used to the heat. National politicians have always put up with vitriol. For them, the internet has perhaps added to the number of hecklers, but the phenomenon is not utterly new for elite officials.

But on the local level, blogs have propelled brickbats into a void. It’s all new for local officials. And the do not like it.

Much of the blog activity that leads to lawsuits is mean-spirited and nothing to cheer about. Nonetheless, you can’t deny that this is participatory democracy. I can’t help but think that when blogging comes to town hall, it is perhaps the greatest fulfillment of the vision the forefathers had for the First Amendment. This is the core within the core of free speech. I think Jefferson, Madison, and the rest would say this is exactly what democracy and freedom of press are all about.

That said, I get that it hurts. A big part of what drives local officials to get lawyered up is the anonymity blogs allow. People are mean anonymously in a way the would never be with their name attached. There’s no doubt about that.

Another part of the story is that the criticism is in print. No doubt local officials have always been subject to mean-spirited gossip. But gossip uttered on the air is less hurtful than font-rendered invective. It goes back to the traditional legal difference between slander and libel – that is, oral vs. written defamation. The common law’s distinction no doubt grows from an important difference in how we perceive the harmfulness of ephemeral speech versus inky text.

Here are posts from BLB where local officials use the law to attack blogs in 2010:

Mike Masnick at TechDirt has a nice succinct synopsis of the incredibly frightening I-can’t-believe-this-happened-in-America story of the First Baptist Church in Jacksonville, Florida and the government/church joint venture that came after blogger Tim Rich:

A local sheriff’s detective, Robert Hinson, who was (in addition to being a sheriff’s detective) a member of the same church, a provider of security to the church, a deacon at the church and a member of the church’s “disciplinary committee,” used his position in the sheriff’s office to open an official investigation into the blog …